21 November 2007

Georgia Court Strikes Down Sex Offender Limits

which prohibits registered sex offenders from residing or loitering at a location that is within 1,000 feet of any child care facility, church, school or area where minors congregate (the "residency restriction") . . . or being employed by any business or entity located within 1,000 feet of any child care facility, church or school (the "work restriction").

The court noted that: "While this time it was a day care center, next time it could be a playground, a school bus stop, a skating rink or a church."

As the Georgia Supreme Court explained:

[The law] contains no "move-to-the-offender" exception to its provisions. . . . third parties may readily learn the location of a registered sex offender's residence. The possibility exists that such third parties may deliberately establish a child care facility or any of the numerous other facilities designated in [the law] within 1,000 feet of a registered sex offender's residence for the specific purpose of using [the law] to force the offender out of the community. . . . A registered sexual offender who knowingly fails to quit a residence that is located within 1,000 feet of any of the facilities or locations designated in the statute commits a felony punishable by imprisonment for not less than ten nor more than 30 years.

The statute was struck down not as a cruel or unusual punishment, or for lack of procedural due process, but under the takings clause, which prohibits government takings of property without just compensation.

As a result, the Georgia count found that "it is apparent that there is no place in Georgia where a registered sex offender can live without being continually at risk of being ejected."

It rejected the argument that the economic value of the residence could be retained by renting the house, arguing instead that the right to reside in a home purchased for the purpose of using as a private residence was a distinct property right.

The court kept in force the employment restriction on the grounds that it limited income from services, but not ownership interests in business, and hence did not deprive offenders of a property interest.

The case is remarkable because it strikes down a widely criticized type of law relating to sex offenders on a novel ground, the takings clause, which is almost never applied to criminal cases (although I have often argued that it should have broader application to the field of civil rights litigation generally).

The law had been targeted by civil rights groups who argued it would render vast residential areas off-limits to Georgia's roughly 11,000 registered sex offenders and could backfire by encouraging offenders to stop reporting their whereabouts to authorities.

State lawmakers adopted the law in 2006, calling it crucial to protecting the state's most vulnerable population: children.

Georgia's law, which took effect last year, prohibited them from living, working or loitering within 1,000 feet of just about anywhere children gather - schools, churches, parks, gyms, swimming pools or one of the state's 150,000 school bus stops. . . . Twenty-two states have distance restrictions varying from 500 feet to 2,000 feet, according to researchers. But most impose the offender-free zones only around schools, and several apply only to child molesters, not all sex offenders.

A number of studies, including one released last month by the Colorado Division of Criminal Justice, conclude that restricting where offenders may live does not prevent repeat sex crimes.

Instead, the restrictions encourage sex offenders to "disappear," blending into communities where they live in the privacy essential to committing new sex crimes, the studies say. . . .

Colorado has more than 10,500 registered sex offenders. More than 3,000 live in the metro area. As of last week, Denver had 1,337 registered sex offenders.

Sex offenders generally have a high rate of recidivism - 18.9 percent for rapists and 12.7 percent for child molesters over a period of five years, the Colorado study reported. . . .

"Residency restrictions prevent us from having sex offenders living together . . . but 25 years of my experience and significant research all support that the more you can make them live together, the easier it is to control them. . . ."

The Colorado research, based on a 2004 survey of sex offenders, found that high-risk sex offenders living in shared living arrangements had significantly fewer probation and criminal violations than those living in other living arrangements. . . .

"Offenders hold each other accountable for their actions and responsibilities and notify the appropriate authorities when a roommate commits certain behavior, such as returning home late or having contact with children," the 2004 Colorado report said.

The study found that sex offenders living with their families re-offend or violate probation at twice the rate of high-risk sex offenders living with other offenders. . . . Colorado has no state laws restricting residency of sex offenders, though probation and parole officers must approve residency and keep sex offenders away from schools or other high-risk situations . . . The Colorado study concluded that a "tight web of supervision, treatment and surveillance" - like that offered by shared living arrangements - was more important in maintaining public safety than where a sex offender resides.

Colorado is one of the few states where shared living arrangements are used . . . It also is one of the few states that uses polygraphs to monitor sex offenders and requires lifetime supervision of some. . . none of the 15 new crimes committed by the 130-member study group involved sexual contact, and most were identified through polygraph examinations. Only one was detected by law enforcement. Two were reported by group members and one man reported himself. . . .

A 2007 Minnesota Department of Corrections study of new offenses committed by known sex offenders concluded that none would have been prevented by a boundary restriction.

Most of the 224 sex offender recidivists surveyed for the study found their victims through another adult, and none made contact with a child near a school, park or playground.

"It is unlikely that residency restrictions would have a deterrent effect because the types of offenses such a law is designed to prevent are exceptionally rare and, in the case of Minnesota, virtually nonexistent over the last 16 years," the report said.

Colorado has no state buffer zone law, though there have been several unsuccessful attempts to pass one. Some local governments, however, have adopted such measures.

These laws are ineffective because sex offenders most often prey on a victim they know . . . . "We keep passing public policy as if these are 'stranger' crimes, but most are not," she said.